Exhibit 10.8(h)
EXECUTION
LIMITED WAIVER AND EXTENSION
Dated as of June 15, 2001
PlanVista Corporation
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, President & Chief Executive Officer
Ladies and Gentlemen:
Reference is made to that certain Second Amended and Restated Credit
Agreement dated as of June 8, 2000 among HealthPlan Services Corporation, a
Delaware corporation (n/k/a PlanVista Corporation) (the "Borrower"), the lenders
referred to therein (the "Lenders") and First Union National Bank ("First
Union"), as administrative agent (the "Administrative Agent") (as modified by
the Limited Waiver and Consent thereto dated as of June 29, 2000, the Limited
Waiver and Consent thereto dated as of September 12, 2000, the Limited Waiver
thereto dated as of September 19, 2000, the Limited Waiver and Consent thereto
dated as of September 19, 2000, the Limited Waiver and Consent thereto dated as
of October 19, 2000, the Limited Waiver thereto dated as of December 8, 2000,
the First Amendment and Limited Waiver and Consent thereto dated as of March 29,
2001 (the "First Amendment"), the Second Amendment and Limited Waiver and
Consent thereto dated as of April 16, 2001, the Limited Waiver and Consent
thereto dated as of April 30, 2001, the Limited Waiver and Consent thereto dated
as of May 4, 2001 (the "May Limited Waiver") and as such agreement may have
otherwise been amended, restated, supplemented or otherwise modified from time
to time prior to the date hereof, the "Credit Agreement"). Capitalized terms
used herein without definition shall have the meanings set forth in the Credit
Agreement.
The Borrower has requested that Required Lenders: (i) waive any
Default or Event of Default which may have occurred under Section 11.1(b) of the
Credit Agreement as a result of the Borrower's failure to make the payments
required by Section 2.3(b)(iii)(I) of the Credit Agreement; (ii) waive the
requirement set forth in the May Limited Waiver as a condition to its
effectiveness that the Administrative Agent receive that certain Letter of
Credit No. S165884 issued by First Union for the account of The New England Life
Insurance Co. in the current outstanding amount of $6,000,000 (the "TNE Letter
of Credit"), (iii) waive the restrictions contained in Sections 10.1 and 10.3 of
the Credit Agreement and reaffirm their consent under the May Limited Waiver to
waive the restrictions contained in Sections 8.2(a) and 10.6, in each case to
the extent necessary to permit the Borrower to consummate the Subject Asset Sale
(as defined in the May Limited Waiver); (iv) waive the Reimbursement Obligation
of the Borrower pursuant to Section 3.5 of the Credit Agreement solely with
respect to any drawing
under the TNE Letter of Credit or the ▇▇▇ ▇▇▇▇ Letters of Credit; (v) extend the
June 15, 2001 date set forth in the first full paragraph on page 3 of the May
Limited Waiver to June 20, 2001; and (vi) extend the June 30, 2001 date set
forth in Section 2.D of the First Amendment to August 31, 2001.
Subject to the representations and warranties contained herein, the
undersigned Required Lenders hereby agree to waive any Default or Event of
Default which may have occurred or be continuing under Section 11.1(b) of the
Credit Agreement solely as a result of the Borrower's failure to make a
mandatory prepayment of the Loans of tax refunds received for the Fiscal Year
2000 as required by Section 2.3(b)(iii)(I) of the Credit Agreement.
Subject to the representations and warranties contained herein, the
undersigned Required Lenders hereby agree to waive compliance with the
requirement set forth in the May Limited Waiver as a condition to its
effectiveness that the Administrative Agent shall have received the TNE Letter
of Credit, which Letter of Credit is required thereby to be returned to the
Administrative Agent undrawn in its entirety or if drawn upon the Administrative
Agent is required to receive a cash payment equal to any amount drawn on such
Letter of Credit (the "TNE Requirement").
Subject to the representations and warranties contained herein, the
undersigned Required Lenders hereby agree to waive compliance with Sections 10.1
and 10.3 of the Credit Agreement to permit the Borrower to (i) incur
Indebtedness on the terms of that certain 6% Subordinated Secured Convertible
Note to be made by the Borrower in favor of the Purchaser (as defined in the May
Limited Waiver) in the aggregate principal amount of $5,000,000 (the
"Subordinated Note") and (ii) grant Liens on the terms of the Subordinated Note,
that certain Subordination Agreement by and between First Union, as
Administrative Agent and Lender, and the Purchaser, and that certain Security
and Pledge Agreement among the Borrower, the Subsidiaries of the Borrower and
the Purchaser, in each case in connection with the Subject Asset Sale and solely
to the extent necessary to permit the Borrower to consummate the Subject Asset
Sale pursuant to the terms of the Stock Purchase Agreement (as defined in the
May Limited Waiver), as amended. The undersigned Required Lenders hereby
reaffirm their consent to waive compliance with Sections 8.2(a) and 10.6 of the
Credit Agreement solely to the extent necessary to permit the Borrower to
consummate the Subject Asset Sale pursuant to the terms of the Stock Purchase
Agreement, as amended; provided that each of the conditions set forth in the
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first full paragraph on page 2 of the May Limited Waiver are met.
Subject to the representations and warranties contained herein, the
undersigned Required Lenders hereby agree to waive compliance with the
Reimbursement Obligation of the Borrower set forth in Section 3.5 of the Credit
Agreement solely with respect to any drawing under the TNE Letter of Credit or
the ▇▇▇ ▇▇▇▇ Letters of Credit.
Subject to the representations and warranties contained herein, the
undersigned Required Lenders hereby agree to extend: (i) the June 15, 2001
date set forth in the first full paragraph on page 3 of the May Limited Waiver
to June 20, 2001 and (ii) the June 30, 2001 date set forth in Section 2.D of the
First Amendment to August 31, 2001.
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In order to induce the Required Lenders to enter into this Limited
Waiver and Extension, the Borrower agrees as follows: (i) to pay to the
Administrative Agent for the benefit of Lenders a waiver fee ("Waiver Fee") in
the amount of $172,500 which Waiver Fee shall be payable in cash on the earlier
of (x) the Final Maturity Date and (y) the date on which the Loans have been
repaid in full, the Revolving Loan Commitments terminated, all outstanding
Letters of Credit replaced or cash collateralized and all other Obligations then
due and owing paid in full. For the avoidance of doubt, this Limited Waiver and
Extension shall be deemed a Loan Document and any failure by the Borrower to
comply with any term, covenant or condition hereof shall constitute an immediate
Event of Default.
Except as expressly provided in this Limited Waiver and Extension, the
Credit Agreement, the May Limited Waiver and each other Loan Document shall
continue to be, and shall remain, in full force and effect. The waivers set
forth above shall be limited precisely as written and relate solely to
noncompliance by the Borrower with the provisions of Sections 2.3(b)(iii)(I),
3.5, 10.6 and 11.1(b) of the Credit Agreement and the TNE Requirement of the May
Limited Waiver in manner and to the extent described above and nothing in this
Limited Waiver and Extension shall be deemed or otherwise construed: (a) to be
a waiver of, or consent to or a modification or amendment of (i) Sections
2.3(b)(iii)(I), 3.5, 10.6 and 11.1(b) of the Credit Agreement or the May Limited
Waiver in any other instance or (ii) any other term or condition of the Credit
Agreement, the May Limited Waiver or any other Loan Document; (b) to prejudice
any other right or rights that the Administrative Agent or the Lenders, or any
of them, may now have or may have in the future under or in connection with the
Credit Agreement, the May Limited Waiver or the other Loan Documents; (c) to be
a commitment or any other undertaking or expression of any willingness to engage
in any further discussion with the Borrower or any other person, firm or
corporation with respect to any waiver, amendment, modification or any other
change to the Credit Agreement, the May Limited Waiver or the other Loan
Documents or any rights or remedies arising in favor of the Lenders or the
Administrative Agent, or any of them, under or with respect to any such
documents; or (d) to be a waiver of, or consent to or a modification or
amendment of, any other term or condition of any other agreement by and among
the Borrower, on the one hand, and the Administrative Agent or any other Lender,
on the other hand.
Each Subsidiary Guarantor hereby acknowledges that it has read this
Limited Waiver and Extension and consents to the terms hereof and further hereby
confirms and agrees that, notwithstanding the effectiveness of this Limited
Waiver and Extension, the obligations of such Subsidiary Guarantor under the
Subsidiary Guaranty Agreement shall not be impaired or affected and the
Subsidiary Guaranty Agreement is, and shall continue to be, in full force and
effect and is hereby confirmed and ratified in all respects.
By its execution hereof, the Borrower hereby certifies on behalf of
itself and the other Credit Parties that: (i) each of the representations and
warranties set forth in the Credit Agreement and the other Loan Documents is
true and correct as of the date hereof as if fully set forth herein and that, as
of the date hereof, no Default or Event of Default has occurred and is
continuing; (ii) no Default or Event of Default exists under the Credit
Agreement or the other Loan Documents after giving effect to the waiver
contemplated in this Limited Waiver and Extension; and (iii) all financial
projections concerning the Borrower and its Subsidiaries that have been or are
hereafter made available to the Administrative Agent or the other Lenders by
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the Borrower or any of its representatives in connection with the transactions
contemplated hereby (the "Projections") have been (or will be, in the case of
Projections made available after the date hereof) prepared in good faith based
upon reasonable assumptions.
The Borrower shall pay all reasonable out-of-pocket expenses of the
Administrative Agent in connection with the preparation, execution and delivery
of this Limited Waiver and Extension, including, without limitation, the
reasonable fees and disbursements of counsel for the Administrative Agent.
This Limited Waiver and Extension may be executed in any number of
counterparts and by different parties hereto in separate counterparts, each of
which when so executed and delivered shall be deemed an original, but all such
counterparts together shall constitute but one and the same instrument. This
Limited Waiver and Extension shall become effective as of the date hereof upon
the execution of counterparts hereof by the Borrower and the Required Lenders
and receipt by the Administrative Agent of written or telephonic notification of
such execution and authorization of delivery thereof.
THIS LIMITED WAIVER AND EXTENSION AND THE RIGHTS AND OBLIGATIONS OF
THE PARTIES HEREUNDER SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED
IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NORTH CAROLINA, WITHOUT
REGARD TO CONFLICTS OF LAWS PRINCIPLES.
[THE REMAINDER OF THIS PAGE HAS BEEN INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties hereto have caused this Limited Waiver
and Extension to be duly executed and delivered by their respective officers
thereunto duly authorized as of the date first written above.
FIRST UNION NATIONAL BANK,
individually and as Administrative Agent
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇▇▇▇
Title: Authorized Officer
CREDIT LYONNAIS, NEW YORK BRANCH, as a
Lender
By: /s/ ▇▇▇▇-▇▇▇▇▇▇▇ Van Essche
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Name: ▇▇▇▇-▇▇▇▇▇▇▇ Van Essche
Title: Vice President
SUNTRUST BANK, as a Lender
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
Title: Director
FLEET NATIONAL BANK, as a Lender
By: /s/ ▇▇▇▇ ▇. Lucy, II
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Name: ▇▇▇▇ ▇. ▇▇▇▇, II
Title: Vice President
SOUTHTRUST BANK, as a Lender
By: /s/ B. E. ▇▇▇▇▇▇▇
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Name: B. E. ▇▇▇▇▇▇▇
Title: Vice President
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COOPERATIEVE CENTRALE RAIFFEISEN-
BOERENLEEBANK BA "RABOBANK
NEDERLAND", NEW YORK BRANCH, as a
Lender
By:
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Name:
Title:
BANK OF AMERICA, N.A., as a Lender
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇
Title: Senior Vice President
AMSOUTH BANK, as a Lender
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Vice President
HIBERNIA NATIONAL BANK, as a Lender
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Vice President
FIFTH THIRD BANK, CENTRAL OHIO, as a
Lender
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
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BORROWER:
PLANVISTA CORPORATION, as Borrower
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Chairman and Chief Executive
Officer
OTHER CREDIT PARTIES:
HEALTHPLAN SERVICES, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Secretary
PLANVISTA SOLUTIONS, INC. (f/k/a
NATIONAL PREFERRED PROVIDER
NETWORK, INC.)
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Chief Executive Officer
NATIONAL NETWORK SERVICES, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Secretary and Treasurer
QUALITY MEDICAL ADMINISTRATORS, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Secretary and Treasurer
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AMERICAN BENEFIT PLAN ADMINISTRATORS,
INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Secretary
HPS OF DELAWARE LLC (f/k/a CENTRA
HEALTHPLAN LLC)
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: President
HPS OF LOUISIANA, INC. (f/k/a EMPLOYEE
BENEFIT SERVICES, INC.)
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: President
GROUP BENEFIT ADMINISTRATORS INSURANCE
AGENCY, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Clerk
HEALTHPLAN SERVICES INSURANCE AGENCY,
INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Clerk
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HEALTHPLAN SERVICES INSURANCE AGENCY OF
ILLINOIS, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Secretary and Treasurer
▇▇▇▇▇▇▇▇▇▇ MANAGEMENT CORPORATION
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Secretary and Treasurer
PROHEALTH, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: President and Chief Executive
Officer
HPS OF MISSOURI, INC. (f/k/a REH AGENCY
OF MISSOURI, INC.)
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Secretary and Treasurer
SOUTHERN NEVADA ADMINISTRATORS, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Secretary
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